Jack Phillips, the Colorado baker who recently won his Supreme Court case over whether he could refuse to bake a cake for a same-sex wedding, claims that his home state is persecuting him again. The Colorado Civil Rights Commission found in June that he discriminated against another potential customer—this time a transgender woman who is a Denver attorney.

He is suing the state in federal district court, demanding an end to what he regards as its harassment. Although he ought to lose this case, he has a legitimate grievance.

In the earlier Supreme Court case, Phillips asked the Court to hold that he had a First Amendment right to refuse, based on free speech or freedom of religion grounds. Wedding cakes, he argued, that celebrate same-sex marriages have a message with which he disagrees, and he claimed that he should not be forced to send such a message. Celebrating such marriages is also contrary to his religious beliefs. The Court didn’t decide that question, but it found improper bias in some remarks by members of the Colorado Civil Rights Commission. (Since then, all of the Commission’s members have changed, so the finding of bias in the earlier case has no relevance now.

The new case involves his refusal to bake a pink cake with blue frosting, which the customer wanted in order to celebrate her gender transition. He claims that this refusal isn’t discrimination at all, but a permissible refusal to sell a distinctive product—a cake celebrating a sex change—to anyone. In the Supreme Court case, Justices Neil Gorsuch and Clarence Thomas embraced the same argument, and evidently are hoping to use it to carve out a new exception to anti-discrimination law. (What they propose would, however, be the end of any discrimination protection for anyone, because the exception would be available to anyone who wants to discriminate.)

Did Jack Phillips discriminate on the basis of sexual orientation when he refused a cake to a same-sex couple? He denies it: “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer, ” he has said. There have been a series of similar claims from conservative Christian wedding vendors, not only bakers but florists and wedding planners: “the discrimination is not on the basis of identity. Rather, the customer is being turned away on the basis of the event that the vendor is unwilling to facilitate, or on the basis of the message sent by that, which the vendor has a free speech right not to endorse.”

The argument misunderstands the anti-discrimination law it purports to interpret. It turns on a distinction between status and conduct that makes no sense in the context of sexual orientation discrimination. Race or sex discrimination is typically discrimination on the basis of unconcealable identity. A vendor who turns away African Americans does so, it seems, on the basis of their status and not their conduct, and certainly not on the basis of an event that he refuses to facilitate. (We’ll shortly see that the seeming is not so, even in this case.)

Phillips is happy to sell his products to gay people as long as they are not asking him to endorse same-sex weddings. As Justice Gorsuch wrote in his concurrence, Phillips “would not sell the requested cakes to anyone,” the requested item being a “cake celebrating same-sex marriage.” That cake is part of an event in which he is unwilling to participate. It also implicates his right to free speech, because the event communicates something. Justice Thomas thought that what Phillips would not sell to anyone was “custom wedding cakes that express approval of same-sex marriage.” The discrimination is not status-based. It is event-based and message-based.

This description is, however, available for all discrimination on the basis of sexual orientation. For some people, being gay is an concealable identity. Before there can be discrimination, the victim must voluntarily do something to identify herself as gay. The discrimination can then be described as being based on conduct, not status: “I’m happy to serve gay people, just not the ones who publicly identify as such,” a vendor might say.

If anti-discrimination protection of gay people has any point at all, it is to prohibit this kind of discrimination. It exists in order to remove the pressure on gay people to hide their identities. The conduct is the object of protection. The case is similar with the prohibition of religious discrimination. One can’t know that a target of discrimination is Mormon, for example, unless that person discloses that he is one. Discrimination against those who wear yarmulkes and hijabs is religious discrimination, even though the wearing of those items is conduct and not status.

Every time a vendor provides someone with goods and services without discriminating, that’s an event that has communicative significance. You can’t carve out an event-based or message-based exception to antidiscrimination law. The exception will swallow the rule whole. There will be no violations of the law that do not fall within the exception.

Take the familiar case of the restaurant that would not serve black customers. It’s the paradigm of wrongful discrimination, the core case of what the law prohibits. We generally think of that as status-based discrimination. But it is also conduct-based: the black customers want to do something, something that white people are already permitted to do. The presence of black people eating lunch at Ollie’s Barbecue in Birmingham in 1965, sitting at a table next to white people, was an event that Ollie didn’t want to facilitate, and because serving food to African Americans sends a message that Ollie didn’t like. Neither conduct nor event nor message can provide a workable distinction between what Phillips did and the paradigmatic discrimination that the law prohibits. Not clear to me what you’re asking me to do here.

One might reply that there must be some message-based exceptions to anti-discrimination law. Contrast Phillips with the case of William Jack, who requested that several Colorado bakers create cakes decorated with biblical verses and images that condemned homosexuality. Each baker refused, and Jack unsuccessfully claimed religious discrimination: the cakes reflected his religious beliefs, and so rejecting the cakes discriminated against those beliefs. If the status/conduct distinction is unsustainable in the way I have just argued, then does Jack have a valid claim?

No. The discrimination here was not on the basis of religion, because the bakers would not sell these cakes to anyone. The bakers would have discriminated on the basis of religion if they had refused to sell them to someone wearing a hijab, or if they had refused to sell an undecorated cake that they knew would be used at a bar mitzvah.

Colorado, in its Supreme Court brief, argued that there was no inconsistency when it rejected Jack’s discrimination claim. If an artist “would not sell a … cake with a particular artistic theme,” such as a “cake featuring a symbol of gay pride ... to any customer, regardless of that customer’s protected characteristics, he need not sell one to [anyone].” An artist is thus “free … to decline to sell cakes with ‘pro-gay’ designs or inscriptions. ... Businesses are entitled to reject orders. … because they deem a particular product requested by a customer to be ‘offensive.’”

Phillips now claims that Colorado has betrayed these principles, arguing that “Colorado has renewed its war against him by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor.” He is right that someone is waging a campaign against him. But that someone isn’t Colorado. His real foe is Autumn Scardina, a Denver attorney.

According to the lawsuit filed in federal district court, Phillips received an email in September of 2017, asking for a custom cake “to celebrate” Satan’s “birthday.” The cake was to have “red and black icing” and include “an upside down cross, under the head of Lucifer.” The customer described the cake as “religious in theme” and reminded Phillips that “religion is a protected class.” A few days later Phillips received a phone call asking for a similar cake, with an image of Satan smoking marijuana. “Scardina” appeared on the caller ID screen. On the day the Supreme Court issued its Masterpiece Cakeshop decision, an email from “a member of the Church of Satan” included a request for a cake with a sexually explicit theme.

A few weeks later, two visitors to the cakeshop requested a custom cake with a pentagram, a symbol commonly linked to witchcraft. When Phillips asked for the customers’ names, one answered “Autumn Marie.” Phillips believes that was Scardina. He refused all these requests, which he was entitled to do, since he would not have baked these cakes for anyone. A claim of religious discrimination based on these episodes would have been treated just like Jack’s claim.

Scardina’s cleverest request was for a cake that was blue outside and pink inside. There’s no reason to think that Phillips would have objected to that. But she explained that the cake’s purpose was to celebrate her transition from male to female. This was a trap, and Phillips fell into it. He believes “that sex—the status of being male or female—is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed.” So he refused, and Scardina brought a claim of discrimination.

The state Civil Rights Division found him liable. Phillips claims in his suit that “Colorado has been on a crusade to crush [him] because its officials despise what he believes and how he practices his faith.” He picked the wrong target. The crusade was coming, not from the state, but from Scardina.

As a matter of law, Phillips must lose. He would sell the exact same physical cake to most people, but not to Scardina. Phillips argues, “Masterpiece Cakeshop did not decline this request because of the customer’s transgender status or other protected characteristic. Rather, it declined the request because of the messages that the cake would have expressed.” But a pink and blue cake in itself sends no message. That’s why Scardina needed to explain what the colors meant to her. He is claiming a right to engage in event-based and message-based discrimination. As we have already seen, that is not a workable exception to antidiscrimination law.

Justice Gorsuch, too, proposes an event-based and message-based exception. He goes beyond Phillips, however, in proposing to make that exception a constitutional requirement. Gorsuch thinks that Phillips’s first case was just like Jack’s:

[All] of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.

Justice Elena Kagan responded that what he refused to sell “was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings.”

Gorsuch and Thomas’s logic depends on the fact that the exact same physical object will have different significations in different contexts. And if they are right, then Phillips has a defense against Scardina: in context, a pink cake with blue frosting carries a distinctive message. It is a special kind of cake, a cake celebrating a sex change, one that expresses approval of changing one’s sex. Phillips will not sell that kind of cake to anyone.

But if one allows this defense, then there is nothing left of anti-discrimination law.

In his suit against Colorado, alleging religious persecution, Phillips claims that the Commission “ignored what Colorado represented to the Supreme Court—that cake artists may decline to create cakes with pro-LGBT designs, themes, and messages.” Its finding that Phillips broke the law “is explainable only by bad faith and animus toward Phillips’s religious beliefs.”

But this presumes that the law is obviously as Gorsuch and Thomas construed it—so obviously that one cannot reasonably understand it in any other way. In fact, as we’ve seen, that view of the law can’t possibly be right. Once the suit was brought before the Commission (which didn’t initiate it), it had an obligation to adjudicate it correctly. That is all it did.

Phillips is on firmer ground when he complains that Colorado law in practice “empowers anyone to harass and prosecute him by simply requesting a cake with a message that conflicts with his faith on a topic that implicates one of the classifications protected under that law.” Because some of his reservations are ones that the law cannot possibly accommodate, he is vulnerable to the attacks of someone like Scardina.

Scardina apparently was determined to nudge Phillips back into court. He was out of the wedding cake business (at considerable cost; he gave up nearly half his business and laid off half his employees). He has been subjected to death threats and harassing emails and phone calls. Rocks have been thrown through his bakery’s window. He had to install security cameras. His wife was afraid to set foot in the bakery.

None of that is enough to satisfy Scardina. She may yet succeed in putting him out of business. If she wins this litigation, he will be subject to an injunction not to discriminate, and if he violates that injunction he will be subject to heavy penalties. Doubtless she will then figure out how to get him to violate it.

One might defend her by observing that it has not been unusual for civil rights groups to use testers to determine whether real estate brokers discriminated against blacks. This kind of entrapment is a necessary remedy to massive housing discrimination, a problem that persists to this day. But Phillips was unlikely ever to discriminate against even a transgender person unless confronted with the unlikely scenario that Scardina crafted.

Relief can’t come from the courts, because no judicially crafted exemption can do the job. It’s hard to imagine even a legislative exemption that would cover this strange scenario.

With respect to the more common, wedding vendor dispute, it ought to be possible for the contending sides of the gay rights/religious liberty controversy to reach some kind of compromise. This kind of bargain is however beyond the institutional capacity of courts. They can’t learn through negotiation what each side’s most urgent interests are, and they can’t draw the kind of arbitrary lines that negotiations often produce. The danger is that judges like Gorsuch will be tempted to impose a judicial solution that throws the law into chaos.

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About the Author

Andrew Koppelman is John Paul Stevens Professor of Law at Northwestern University. His latest books are The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press) and Defending American Religious Neutrality (Harvard University Press).